Opinion
October 2, 1929.
November 18, 1929.
Practice — Practice Act of 1915 — Judgment for want of sufficient affidavit of defense — Summons — Service — Fifteen days allowed for answer.
In an appeal from an order of Court, striking off a judgment, the record disclosed that the plaintiff issued a summons in assumpsit but that it was not served. The same day a statement of claim with notice to file an affidavit or defense was served and filed. An appearance was entered for the defendants five days after the service of the statement. Within 15 days, however, after the entry of the appearance, a judgment was entered against the defendant for want of an affidavit of defense. In such case, the order of the Court making absolute the rule to strike off the judgment will be affirmed.
A defendant is allowed 15 days for the filing of an affidavit of defense, and the period thus allowed does not begin to run until the defendant has either been served with a summons or has voluntarily entered an appearance.
To begin actions, under the Practice Act of 1915, the issuance of a writ of summons is still necessary.
Appeal No. 248, October T., 1929, by plaintiff from order of M.C., Philadelphia County, March T., 1929, No. 1082, in the case of J.D. Jones v. George Aaronson and Esther Aaronson, his wife.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Action of assumpsit. Before CASSIDY, J.
The facts are stated in the opinion of the Superior Court.
Rule to show cause why the judgment should not be stricken off. Rule made absolute. Plaintiff appealed.
Error assigned, among others, was the order of the court.
James Yearsley, for appellant.
Henry Arronson, and with him Harry A. Rutenberg and Simon Pearl, for appellee.
Argued October 2, 1929.
Judgment by default was entered against the defendants. A rule was entered to show cause why it should not be stricken off. The reason alleged was that fifteen days in which the defendants had to file an affidavit of defense did not begin to run until the defendants were served with the summons or had entered an appearance and that the plaintiff had taken judgment within that period. Summons was issued March 22, 1929, but not served. The same day, statement and notice to file affidavit was filed and served. On March 27, 1929, appearance was entered for the defendants. Within fifteen days after the defendant's appearance, to wit, April 9, 1929, judgment was entered for want of an affidavit of defense. The court made the rule absolute and struck off the judgment. Had the defendant been served with the summons, judgment could have been entered after the return day of the writ. Act of March 10, 1921, P.L. 16.
In Murta v. Reilly, 274 Pa 584, the Supreme Court quotes at length from the opinion of the lower court in which the cases in point are reviewed and the conclusion is reached "that the fifteen days allowed for the filing of an affidavit of defense to the statement so served do not begin to run until the defendant has either been served with the summons or voluntarily entered an appearance."
The Practice Act of 1915 did not introduce a new method of instituting actions and it is still necessary to begin actions by issuing a writ of summons: Spang Co. v. Adams Express Co., 75 Pa. Super. 107. See also, Borteck v. Goldenburg, 87 Pa. Super. 602.
The lower court was right in holding that fifteen days having not expired from the entry of the appearance by the defendants or of the service of the summons on them, the plaintiff had no right to enter judgment by default.
The order of the court making absolute the rule to strike off the judgment is affirmed.